On Feb. 18, 2025, Immigration and Customs Enforcement (ICE) issued a directive encouraging the increased use of third-country removals against individuals granted withholding of removal under the Immigration and Nationality Act (INA) and individuals granted protection under the Convention Against Torture (CAT). The directive states that withholding and CAT are “country-specific protections from removal” that do not prevent removal to a third country. As a result, the directive instructs officers that when individuals granted withholding of removal or CAT protection report for a check-in on a non-detained docket, officers should consider “the viability of removal to a third country” and whether the noncitizen should be re-detained.

ICE’s directive focuses on noncitizens who already have removal orders but whose removals have not been executed. This population, as discussed above, may include noncitizens granted withholding of removal or CAT protection. When granting these forms of relief and protection, the Immigration Judge must enter an order of removal to a designated country and then “withhold” or “defer” removal to that specific country. This population may also include noncitizens with orders of removal but who cannot be removed because their home country does not accept deportees. If, however, ICE can effectuate removal of these individuals to a third country, it makes their jobs easier as they may be able to bypass any further immigration court hearings. Given the increased pressure that ICE has been under to meet quotas for arrests, detentions, and deportations, it is not surprising that the agency is focused on those who already have removal orders as being easy targets for removal.

On March 23, 2025, a complaint, motion for class certification, and motion for a temporary restraining order were filed in district court in Massachusetts challenging the ICE directive and policy of removing individuals to third countries without notice and an opportunity to express a fear of return to that third country. This case is titled D.V.D. v DHS. On April 18, 2025, the court certified a nationwide class comprised of the following individuals:

“All individuals who have a final removal order issued in proceedings under Section 240, 241(a)(5), or 238(b) of the INA (including withholding-only proceedings) whom DHS has deported or will deport on or after February 18, 2025, to a country (a) not previously designated as the country or alternative country of removal, and (b) not identified in writing in the prior proceedings as a country to which the individual would be removed.”

On the same day and in the same order, the court issued the following preliminary injunctive relief:

“[P]rior to removing any [noncitizen] to a third country, i.e., any country not explicitly provided for on the [noncitizen]’s order of removal, Defendants must:

• Provide written notice to the [noncitizen] —and the [noncitizen]’s immigration counsel, if any — of the third country to which the [noncitizen] may be removed, in a language the [noncitizen] can understand;
• Provide meaningful opportunity for the [noncitizen] to raise a fear of return for eligibility for CAT protections;
• Move to reopen the proceedings if the [noncitizen] demonstrates “reasonable fear;” and
• If the [noncitizen] is not found to have demonstrated “reasonable fear,” provide meaningful opportunity, and a minimum of 15 days, for that [noncitizen] to move to reopen immigration proceedings to challenge the potential third-country removal.”

Unfortunately, on June 23, 2025, the Supreme Court issued a decision on its“shadow docket,” granting the government’s requested stay of removal as to the preliminary injunction issued by the district court. The Supreme Court provided no analysis in its decision, leaving practitioners with no guidance as to what to do to ensure that clients who may be at risk of removal to a third country can receive the due process to which they are entitled. There is no question that noncitizens are entitled to due process, and the district court’s injunction merely provided them with that—notice and opportunity to be heard. Why then did the Supreme Court intervene in this litigation while providing no reasoning or guidance for litigators and the lower courts? At this time, this is an unanswerable question.

So what does the ICE policy mean, practically speaking, for noncitizens with removal orders? First, noncitizens must be prepared for the possibility (perhaps even likelihood) of detention if they are reporting for ICE check-ins and have an order of removal. Again, those at risk include individuals granted withholding of removal, protection under CAT, and those with removal orders to countries that do not accept deportees. They may be detained even if they have been reporting to ICE for years without issue, and even if they have no criminal record. Many advocates have recommended that practitioners be prepared to immediately file a habeas petition if a client in this situation is detained at an ICE check-in in order to retain jurisdiction in the district where the noncitizen is initially detained and before they are transferred to a far-away detention facility.

Because the preliminary injunction in D.V.D. has been stayed, the government will likely assert that these individuals do not require written notice of the third country to which they may be removed or an opportunity to raise a fear of return to that third country. Clients may have to resort to expressing an affirmative fear of return to multiple countries and hope that they are granted a reasonable fear interview. These individuals are in an extremely precarious position, heightened by the government’s misconduct throughout this litigation, as well as the Supreme Court’s lack of guidance as to what, if any, procedural protections must be afforded to these individuals.

A crucial point about this case is that the litigation in D.V.D. has been marred by serious misconduct by the government. This wrongdoing includes submitting a declaration to the court that contained false information as to whether notice of the third country removal had been provided to one of the plaintiffs. (This declaration was later corrected and the man who was wrongly deported was recently returned to the United States.) It also includes attempting to remove noncitizens to Libya without proper notice, which the district court found “would clearly violate this Court’s order.” Furthermore, it includes attempted removals of noncitizens with removal orders to South Sudan without the proper notice and opportunity to be heard. As to this last action, the district court found the government in violation of its preliminary injunction and ordered that reasonable fear interviews be provided to these individuals overseas at a military base in Djibouti. Indeed, Justice Sotomayor, in her 19-page dissent to the Court’s grant of a stay, noted that the Court was essentially rewarding the government’s noncompliance and violation of court orders by granting it equitable relief.

The plaintiffs in this case are represented by the National Immigration Litigation Alliance, the Northwest Immigrant Rights Project, and Human Rights First. Updates on the case can be followed here.